WASHINGTON — The Supreme Court on Monday blocked further same-sex marriages in Utah while state officials appeal a decision allowing such unions.

The terse order, from the full court, issued a stay “pending final disposition” of an appeal to the federal appeals court in Denver. It offered no reasoning.

The Supreme Court acted more than two weeks after a federal judge in Salt Lake City on Dec. 20 struck down Utah’s ban on same-sex marriage, saying it violated principles of equal protection and due process. Judge Robert J. Shelby of Federal District Court refused to stay his decision while it was appealed, as did the United States Court of Appeals for the 10th Circuit, in Denver.

Judge Shelby’s decision made Utah the 18th state, along with the District of Columbia, to allow same-sex marriages, and many hundreds of gay and lesbian couples have married there in the intervening weeks. Should a higher court ultimately reverse Judge Shelby’s ruling, it is not clear what would happen to those marriages.

In their Supreme Court brief, Utah officials said Judge Shelby’s decision should be stayed “to minimize the enormous disruption to the state and its citizens of potentially having to ‘unwind’ thousands of same-sex marriages.” The brief did not explain why it took officials so long to ask the Supreme Court for a stay; they filed on Dec. 31, a week after the appeals court declined to issue one.

Judge Shelby was only the second federal judge to strike down a state ban on same-sex marriages, along with Judge Vaughn R. Walker in San Francisco, who in 2010 struck down Proposition 8, California’s ban. That ruling was stayed while it was considered by an appeals court, which affirmed it, and by the Supreme Court.

In June, the Supreme Court effectively sustained Judge Walker’s decision on technical grounds and without reaching the question of whether there is a constitutional right to same-sex marriage.

Other states have allowed same-sex marriages as a result of ballot measures, legislative action or decisions from state courts. Utah’s ban, an amendment to the state Constitution, was passed in 2004 with the support of 66 percent of the voters.

In urging the Supreme Court to stay Judge Shelby’s decision, state officials relied on the second same-sex marriage decision issued by the Supreme Court in June, United States v. Windsor, though the officials conceded that the ruling offered support to both sides in their case.

The Windsor decision struck down the part of the Defense of Marriage Act that denied federal benefits to married same-sex couples in states that allowed such unions. Justice Anthony M. Kennedy, writing for a five-justice majority, grounded his decision partly in federalism principles, saying the regulation of marriage was primarily a matter for the states.

The Supreme Court’s order, which can be seen at this link, is short and merely states that the District Court Order is stayed pending the appeal to the 10th Circuit Court of Appeal without providing any substantive basis for the Court’s decision. This is typical of how the Justices handle matters such as this in no small part due to the fact that they are well aware that a case like this may eventually find its way to them for a decision on the merits and none of the Justices wishes to lock themselves in to a particular legal position when it comes before them at that point. Additionally, as I noted before, the matter was originally referred to Justice Sotomayor due to her position as Circuit Justice for the 10th Circuit, but it seems apparent from the manner in which the decision was announced that she ultimately ended up referring the matter to the full Court, most likely over the weekend. There’s no way to know for sure, but it does appear that the decision to grant the stay was unanimous since their is, as Lyle Denniston notes, no indication that any of the Justices disagreed with the disposition of the application for a stay.

Denniston makes these further observations about the possible reasons behind the decision:

Had it refused the state’s request for delay, that would have left at least the impression that the Court was comfortable allowing same-sex marriages to go forward in the thirty-three states where they are still not permitted by state law.

Since the Monday order provided no explanation, it was not clear which of the arguments made by state officials had been convincing to the Justices. The state had argued, among other things, that U.S. District Judge Robert J. Shelby’s decision nullifying Utah’s ban had preempted the power of the Supreme Court to be the final arbiter on that question. The state also had contended that its interest in enforcing its ban would have been undercut by a refusal of a stay. And it had said that it would be difficult to untangle marriages that had occurred in the meantime, if the ban were ultimately upheld in the courts.

From here, the path of the case is relatively straightforward. The State of Utah will quite obviously take the steps necessary at this point to formally appeal the case to the 10th Circuit, where it apparently will be briefed and argued on something of an expedited basis. From there, it will, eventually, be at a point where it will be ripe for consideration by the Supreme Court, although that is most likely not going to happen during this term since, as Denniston notes, the time frame during which cases can reasonably be scheduled or a hearing is nearly ended. Instead, this case, perhaps along with the one or more of its companion cases pending around the country, would most likely end up being argued during the term that starts in October 2014. In any case, until that point, no further same-sex marriages will be taking place in Utah.

Although I had speculated last week that the Supreme Court might end up denying the request for a stay given that two lower courts had also done so, the outcome here isn’t entirely surprising. In general, the purpose of stays at the appellate level is to preserve the position of the parties until the matter can be fully litigated via the appeals process. Also, as Denniston notes, it also likely indicates that the Court wishes to allow the entire issue of same-sex marriage to be more fully litigated in the lower courts before it is presented with the ultimate obligation of ruling on whether or not the Constitution grants a right to marriage to gays and lesbians regardless of the provisions of state law. After all, if the Supreme Court were to ultimately uphold it would not be like the Court’s decision in United States v. Windsor, which only applied to Federal Law, or Hollingsworth v. Perry, which likely would have only applied to California even if they hadn’t dodged the ultimate issue of Proposition 8’s validity. Here, a decision striking down the Utah’s law would mean, ultimately, that the law in all 33 states that currently ban same-sex marriage is unconstitutional. While I personally happen to believe that this would be a correct decision, I can understand the reasons why the Court would want to proceed cautiously on the matter until it is indeed require to render a final decision.

To answer a question that I’m already seeing pop up in the media, I would not read anything significant into how this or any other case might be decided on the merits into how the Court handled this application for a stay. For one thing, the standards in evaluating such an application are far different from the legal standards that the Court will have to use in evaluating the case on its merits if and when that time comes. For another, as I noted above the Justices motivations in handling the stay application are rather different from those in play when handling a case on its merits. So, the fact that the stay request was apparently agreed to without dissent doesn’t really tell us anything about how it might turn out when it is heard on the merits, whether that occurs later this year, in 2015, or some time later.

One open question this does leave, of course, is the status of the 900 or so same-sex couples who took advantage of the nearly two week period during which same-sex marriage was legal in Utah. The answer to that question is that we don’t know yet. I would think that, for the moment at least, those marriages will be seen as being legal and valid given Judge Shelby’s Order, but there will be an obvious conflict if the 10th Circuit, or the Supreme Court, ultimately ends up holding that Utah’s ban is in fact permissible under the Constitution. At that point, it would presumably be up to either Judge Shelby and the 10th Circuit or, more likely, the state courts in Utah, to determine what the status of these marriages might be. Looking at this as an abstract issue, it strikes me that the marriages ought to be seen as valid regardless of what ultimately happens to Utah’s law in the Courts since they got married during a period when a Court of competent jurisdiction had ruled that they had a right to do so. Of course, hopefully that won’t be an issue and Utah’s law will be struck down. In that case, the marriages that took place during the past two weeks will be as valid as those that occur after a final decision in this matter.

In any event, the Supreme Court has spoken and, for the time being at least, Utah’s law banning same-sex marriages is back in effect. Whether that remains the case going forward will be up to the Courts.

About Doug MataconisDoug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway.
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“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
— 14th Amendment, USC

So, how, exactly, do the courts get around these?

I read one idiot on another blog state that until it is proven that homosexuality is genetic and not a choice, he will continue to believe homosexuals choose to be so. My question:

Do heterosexuals CHOOSE to be heterosexual? Are heteros naturally attracted to the opposite sex, or is it genetic and instinctive? If homosexuals choose to be homosexual, then it stands to reason that they are really heterosexual and they fight their natural, instinctive urge toward the opposite sex in order to choose to be with the same sex.

The illogic of it is astounding, and I’ll bet all the haters have never thought of it in those terms.

In other words, with respect to this issue, it isn’t up to gays to prove in a court of law that they have a constitutional right to access to marriage. Equal protection presumes that they do. It”s up to the state to advance a rational basis for denying it to them which satisfies a court that it justifies abrogating equal protection.

So it’s really no more defensible to say “gays can’t get married because they choose to be gay” than it would be to assert that smokers can’t get married because they choose to smoke or nail-biters can’t get married because they choose to bite their nails. It’s window dressing for bigotry, nothing more.

I’ve seen that “argument” before. At base, its proponents are terrified that a genetic or biochemical basis for homosexuality will be discovered one day. To them, that means that God willed homosexuals to be homosexuals, which undermines everything they wish to believe.

Any contention other than homosexuals are evil people making an evil choice is anathema to them.

I’m honestly not that surprised by it, given that I suspected that Sotomayor would not want to put herself into the position of singlehandedly approving the continuity of SSMs in Utah, therefore a referral to the entire court was likely, and the tendency of the court to attempt to delay when it thinks that a rational concept is happening faster than society is willing to accept it. It’s cowardly, without a doubt, but like many courts before them they are aware that the proposition that they exist in a vacuum removed from politics isn’t entirely accurate.

That said, I agree, this isn’t as much a question of “if” as one of “when” SSM becomes a national reality. Even they don’t possess the degree of mental flexibility necessary to find that the 5th Amendment (with its implied grant of equal protection) protects SSM, but the 14th Amendment (with its explicit grant of equal protection) somehow doesn’t.

This is probably the conservative, or prudent, path. Especially in Utah where this is a massive sea-change.
More importantly…I think it’s worthwhile to note that many states now have marriage equality and none of the things that Republicans have been trying to scare us with have transpired. None. Zip. Their claims have been shown to be fiction.
Same with pot…it’s now legal to smoke pot for recreational in Washington and Colorado…and it’s effectively legal many other places…21 states now have legal marijuana in some form or another. And yet the world has not ended. Reefer madness has been shown to be fiction.Maybe we have begun to stop listening to bull-shit scare-tactics…which are by and large the modus-operandi of the Republican party. Or maybe it’s just a matter of younger generations, that have been exposed to these things and found them benign, coming to power. In either case…here’s hoping the trend continues.

One of the difficulties for the anti-SSM side is that they have been unable to fashion even a “rational basis” argument against SSM. Courts don’t even have to find that homosexuals are a suspect class, triggering “strict scrutiny” constitutional analysis (To read more about Constitutional analysis standards , go here).
Their arguments fail the lowest hurdle. Even superstar conservative advocates like Clements come off looking incompetent advancing conservative arguments against SSM.
I think that pro SSM advocates are now going to be emboldened to file challenges even in red states. If they get the right judge, they can get favorable rulings that they can push up to the appellate courts. The USSC will have to take this cases and will have to face up to the fact that the anti SSM side doesn’t have anything, other than animus. Now that works for Scalito and Thomas, but I’ve a feeling that Roberts and Kennedy will only entertain those arguments for so long, then call a halt to the charade.

One of the difficulties for the anti-SSM side is that they have been unable to fashion even a “rational basis” argument against SSM.

Oh, I agree. They’ve advanced countless different variations of animus as the rationale (and AFAICS no rationales that aren’t predicated in animus.). The court has been more than clear about the impermissibility of animus as a basis for abrogating equal protection.

I think that pro SSM advocates are now going to be emboldened to file challenges even in red states.

They already are, in a multitude of states, Texas, Virginia, North Carolina, Colorado, Pennsylvania, Oregon, and West Virginia just off the top of my head. I am certain that there are challenges pending in additional states. All of the challenges for which I have read the briefs, including the one in Utah, cite Windsor, for obvious reasons mentioned above. Utah just came to adjudication first, but it will by no means be the last such ruling.

One of the difficulties for the anti-SSM side is that they have been unable to fashion even a “rational basis” argument against SSM.

BINGO! Part of the problem is they can’t quite tailor the law so they can discriminate to their hearts content against the right people without looking like the jerks they are (publicity, dear boy).

Ban sodomy instead of gay marriage? Bye bye BJs for everyone! That won’t do!Ban gay marriage on basis of reproduction? Whoops, just pissed off all infertile, aged and childless-by-choice heteros! Think of the tax base!Ban gay marriage on basis of Christian tradition and the Bible? Whoops, just told every other faith their marriages are invalid.Ban gay marriage on “historical” traditions? Whoops, it used to be one man, many women. There goes your 1M-1F definition. Not to mention the whole illegal interracial thing and many other inconvenient facts of history…..Ban gay marriage on “think of the children?!” Whoops, what happens if they don’t have children? What, what if they did before all this? Are they suddenly bad parents now? And we won’t even get into the whole adoption thing…..

Face it, you can’t limit marriage to heteros only without excluding some other group accidentally – a group that will be very very pissed to loose some rights because they were in the crossfire of a bigot. That’s why religion is the fallback; pin the blame on God for their hate.

To paraphrase to a poster (apologies, can’t remember who):
Don’t ask why they don’t have the right to marry. Ask yourself why you DO.

I’d be willing to bet that they’re next. (Maybe they’re the ones that won’t get it in my lifetime. Then again, I was wrong about SSM.) The biggest problem they face is that in this country polygamy has a history of being used almost exclusively as excuse to sexually abuse underage girls.

@Tyrell: far smaller percentage of the population, and has a history of being an abusive experience for women. Far less likely to get the approval of the required level of the population.

The rear-guard action taken by the anti-SSM will be doomed to fail. They didn’t squawk enough about the abuses in traditional marriage (marital abuse, rape, and desertion), didn’t excommunicate divorced and adulterous males, and now have ended up trying to make a last stand on what looks like complete bigotry.

The Catholic Church allowed Newt Gingrich to marry (in Holy Matrimony) the woman he was committing adultery with and never said boo, for heaven’s sake. Once you’ve done that, you’ve got very little moral suasion to stand on.

Now that I think about it the other possibly reasonable argument against polygamy is spousal privilege. An arbitrarily large group of people all having privilege would be ripe for abuse by criminal organizations.